Citation Nr: 1201325
Decision Date: 01/12/12 Archive Date: 01/20/12
DOCKET NO. 09-49 217 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUE
Entitlement to service connection for a lumbar spine disorder.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
G. Slovick, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1962 to September 1965.
This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO).
In May 2011, the Board remanded the issue on appeal for further development. The issue is now ready for adjudication.
FINDING OF FACT
The preponderance of the evidence is against finding that the Veteran's lumbar spine disorder is related to active military service or events therein; and compensably disabling spinal arthritis was not shown within one year following discharge from active service.
CONCLUSION OF LAW
A lumbar spine disorder was not incurred in or aggravated by service; spinal arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in pre-rating correspondence dated March 2007 of the information and evidence needed to substantiate and complete his claim, to include information regarding how disability evaluations and effective dates are assigned.
This matter was most recently before the Board in May 2011, when the case was remanded to obtain any outstanding private and/or VA treatment records, and to obtain records from the Social Security Administration. In accordance with the mandates of the remand, VA obtained the Veteran's Social Security records. VA additionally requested any and all additional information from St. John's Mercy Medical Center for the period from March 1986 to May 2007 and provided a release of information form to the Veteran in order to obtain such information as requested in the Board remand. The Veteran did not provide VA with a completed release form. In this regard, the Board finds that corresponding to VA's duty to assist is a duty on the appellant's part to cooperate with VA in developing a claim. 38 C.F.R. § 3.655; see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Hence, the Board finds that all of the actions previously sought by the Board through its prior development request have been completed as directed as is within the RO's power. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). A supplemental statement of the case was issued in October 2011, which denied confirmed and continued the previous denial.
VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, providing VA examinations. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and thus allows the Board to make a fully informed determination. There is no evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication.
Governing Law and Regulations
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.
The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Factual Background
Service treatment records demonstrate a normal spine upon enlistment in September 1962. The Veteran's July 6, 1965 report of medical examination and report of medical history for the purpose of separation from service demonstrated no findings or complaints of a spine disorder. Notably, a treatment note dated July 19, 1965 reported the Veteran's complaints of back pain for three weeks. Treatment with a heating pad was prescribed.
The evidence of record includes a March 1987 treatment note from St John's Mercy Medical Center which noted that the Veteran underwent an excision of the L4-5 disc, and that he was slow to respond from an April 1986 injury. Still, he had improved until a December 1986 hunting injury when he slipped and developed severe low back pain and spasms, and was unable to work. A June 2000 report from Dr. S.S. made in conjunction with a Social Security Administration disability determination noted that the Veteran presented with complaints of pain from the mid-thoracic area to the low back which dated back to 1986 when he had low back pain and was found to have a herniated disc. It was reported at that time he had been off of work for six months and underwent a laminectomy.
Treatment notes dated in January 1993 from the Missouri Baptist Medical Center noted that the Veteran was treated for low back pain following a November 1991 work-related injury.
In an April 2007 statement, the Veteran reported that he injured his lower back in 1965 while loading a 50 caliber machine gun on a personnel carrier.
In July 2008, the Veteran was afforded a VA examination. During his examination the Veteran reported that while placing a 50 caliber machine gun on an armored vehicle he strained his lower back. It was noted that he was treated once for this in the 1960s and was returned to regular duty, finishing his service commitment uneventfully from a low back standpoint. The Veteran explained that after service he worked at a car factory for over twenty years and that he saw a chiropractor, once or twice a week for many of those years at least up to the mid-1990s at which point he developed right lower extremity radiculopathy. The Veteran described a career wherein he worked as a mechanic and did general duties involving getting in and out of trucks and vans. He reported that he did not have any significant occupational injuries involving his low back although he did get a work-up from Dr. R.D, a neurosurgeon in 1986 at St. John's Mercy Medical Center for right lower extremity radiculitis associated with increasing lumbar discomfort. A diagnosis of lumbar degenerative disc disease was provided.
Having reviewed the claims file and following a physical examination, the VA examiner opined that it was less likely than not that the Veteran's current clinical history, physical examination and related surgery in 1986 was secondary to his in-service lumbar strain. The examiner stated that the Veteran had only one presentation of low back pain in-service, and that he had a robust occupational career at a factory over many years which involved ergonomic postural changes about the waist such as bending, stooping and getting in and out of trucks and vans. The examiner believed that it was as likely as not that his ensuing lumbar degenerative disc disease and related neuropathy were secondary to his occupational career as opposed to his in-service low back strain.
In a November 2008 letter, private chiropractor Dr. L.C. stated that the Veteran had been a patient from 1965 to 1986. During that time the appellant underwent treatment for ongoing back pain accompanied by sciatic pain. This eventually required surgery for L4-5 disc herniation. Unfortunately, Dr. L.C. stated that his clinical notes were no longer available as he retired in 1995, and his records were not retained.
In a March 2009 statement in support of his claim, the Veteran explained that while he was being discharged he was asked if he had any medical problems and replied that he still experienced back pain, but that he told the medic to forget about it once he was told that his back complaints would delay his discharge. The appellant stated that he was discharged on September 27, 1965 and was hired for his factory position on October 14, 1965.
In a March 2009 statement from a service buddy, M.P., said that he observed the Veteran injure his back in July 1965 and that the appellant still had back pain by August 1965. The Veteran additionally stated that he would not have reported any medical problems at the time of discharge because he was told that if he did he would stay until the problem was straightened out.
Analysis
As noted above, in order to establish service connection, there must be a current disorder which is shown to be related to an in-service injury or disorder. In this case, the evidence demonstrates that the Veteran experienced back pain during service in July 1965 and that he presently has a lumbar spine disorder. Accordingly, the issue of entitlement to service connection for a lumbar spine disorder turns on whether the evidence demonstrates a link between the two. The Board finds that the preponderance of the evidence is against finding entitlement to service connection for a lumbar disorder for the reasons enumerated below.
First, while arthritis is demonstrated by the evidence of record, the first findings of a chronic spine disorder, to include arthritis, date from 1986, twenty years after the Veteran's discharge. Accordingly, the record does not show compensably disabling arthritis within one year following his separation from active duty. Hence, presumptive service connection under 38 C.F.R. §§ 3.307, 3.309 is not in order.
Turning to the question of entitlement to direct service connection, supporting the Veteran's claim for entitlement to service connection are his assertions that he experienced back pain at the time of discharge and thereafter. Further supporting his claim is his buddy's statement that the Veteran experienced pain in August 1965, and Dr. L.C.'s statement that he treated the appellant for low back pain from 1965 to 1986, eventually requiring surgery.
Weighing against the Veteran's claim for entitlement to service connection are the facts that the Veteran is shown to have worked in a physically challenging environment from the time of his discharge. He also sustained a number of postservice injuries. Additionally weighing against his claim is the opinion of the July 2008 VA examiner who stated that it was less likely than not that the Veteran's current clinical history, physical examination and related surgery in 1986 were secondary to his in-service lumbar strain. The Board finds that this evidence outweighs the evidence in favor of a finding of entitlement to service connection.
The Veteran asserts that he has experienced back pain since service and he is competent to do such. He is not, however, competent to demonstrate that his later back pain was due to an in-service injury as opposed to his continuous factory work, or that his later back diagnosis was due to the same. In this respect, degenerative disc and joint disease are not disorders for which lay evidence of etiology is competent nexus evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran can attest to factual matters of which he had firsthand knowledge, such as pain or an injury, he is not competent to offer a medical opinion linking the spine disorder to service. Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). For such a finding, a medical professional is necessary.
In this case, Dr. L.C. states that he treated the Veteran for low back pain between 1965 and 1986 but he does not relate the Veteran's back pain or any later diagnosis to the appellant's service and his records are unavailable for review. Thus Dr. L.C.'s correspondence solidifies the Veteran's claim that he experienced pain since 1965 but cannot be considered a nexus opinion linking a back disorder to service.
In contrast, the one medical nexus opinion provided in the claims file is against finding entitlement to service connection. The July 2008 VA examiner, having examined the Veteran and the claims file, stated that, given the nature of the Veteran's in-service back injury and the nature his later employment, it was less likely that either his present back disorder or the disorders demonstrated in 1986 were secondary to an in-service injury. This medical opinion outweighs the Veteran's lay assertions that his back disorder is related to service due to the fact that the appellant is not medically competent to make such assertions. Finally, it is significant that when the appellant was being first treated in 1986, he did not relate a long standing history of back pain following an in-service injury. Thus, because the opinion of the July 2008 VA examiner is the only medical nexus opinion of record, a link between the Veteran's service and his present lumbar disability is not shown and the claim of entitlement to service connection must fail.
In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
ORDER
Entitlement to service connection for a lumbar spine disorder is denied.
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs